The state doesn’t show a “clear indication” to take DNA samples from three defendants to attempt to connect them to a gun found in the trunk of one defendant’s car that he owned up to. A motion to suppress the case search hasn’t yet been filed. People v. Heyward, 2021 NY Slip Op 21017, 2021 N.Y. Misc. LEXIS 379 (Bronx County Jan. 28, 2021):
As to defendant Colon, as an initial matter the People have not established probable cause to believe that he possessed the gun. Simply being present in a car that someone else was driving does not indicate that he even knew that a gun was in the trunk, inside a closed container, inside someone’s personal bag. Furthermore, even if he had any knowledge that one of his companions had a gun in the trunk, the People present no facts that would indicate that Colon, the backseat passenger, in any way exercised dominion and control over the weapon, as is necessary to legally constitute possession. (PL 10.00[8]; People v. Ballard, 133 Misc 2d 584, 507 N.Y.S.2d 572 [Sup Ct, NY, 1986]).
For similar reasons, the People have not alleged any facts that create a “clear indication” that Colon’s DNA would be found on the gun. The People do not allege that Colon ever handled the gun. The allegations presented by the People are that the gun belongs to Iglesias, based on his statement to the police that the gun was his, which is reinforced by Heyward’s statement also asserting that the gun belongs to Iglesias. Colon disclaimed any knowledge of the gun’s existence, and the People have provided no basis to conclude otherwise. The “clear indication” that the intrusion will supply probative evidence is a prerequisite for an infringement on bodily integrity and privacy as the People are requesting here. (Winston, 470 US at 762; Abe A., 56 NY2d at 297; Schmerber, 384 US at 770.). As the People have not met the basic, preliminary requirements necessary for the issuance of the order, the People’s motion as to defendant Colon is denied.
It should be noted that the People may not rely on the “automobile presumption” to establish probable cause for the purpose of the present inquiry. The “automobile presumption” codifies the commonsensical conclusion that where a gun is found in a car, that may, but need not, be taken as some evidence that everyone in the car at the time possessed it. (See PL 265.15[3], “the presence in an automobile of any firearm is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon is found[]”). However the presumption is unconstitutional in the absence of “a reasonable basis for concluding that the defendant had control over the weapon.” (People v. Porter, 133 Misc. 2d 584, 590-591, 507 N.Y.S.2d 572, citing Ulster County Court v. Allen, 442 US 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 [1979]).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)